of a deputy of Clarencieux king of arms, that he was "a scrivener, and no herald," &c.; (a) of an apothecary, "It is a world of blood he has to answer for in this town, through his ignorance; he did kill a woman and two children at S.; he did kill J. P. at P.; he was the death of J. P.; he has killed his patient with physic."(b) PART IV. CHAPTER VI. So in the case of any other lawful trade, business, or Trades, menial employment, however humble or menial, and though it be offices, &c. one of which the court cannot take judicial notice, (c) words spoken, and, à fortiori, words written or printed, and published, of a person in relation to such employment, which have a tendency to injure him in respect thereof, are actionable per se. "An action," it has been said, (7) "lies for speaking scandalous words of any man of any trade or profession, be it never so base, if they are spoken with reference to his profession." Thus, it has been held actionable to say of a servant in husbandry and bailiff, "Thou art a cozening knave, and hast cozened thy master of a bushel of barley;" (e) or of a tradesman, "Thou art a rogue, and thou hast cheated me of several pounds;"(f) of a person carrying on the business of a butcher that she had used false weights in her trade; (g) of a cornseller, "You are a rogue and a swindling rascal; you delivered me one hundred bushels of oats worse by sixpence a bushel than I bargained for;"(h) of an auctioneer and appraiser employed by the defendant to value certain goods, "He is a damned rascal, he has cheated me out of a hundred pounds on the valuation;"(¿) of an asphalte manufacturer, "The old materials have been relaid by your company in the asphalte work executed in front of the Ordnance Office, and I have seen the work done:" innuendo, that the plaintiff "had been guilty of dishonesty in the conduct of his said trade, by laying down again the old asphalte materials which had before been used at the entrance of the said Ordnance Office instead of new (a) Cro. Eliz. 328, 329; 1 Vin. Abr. 464, &c. The following are similar cases: Cro. Eliz. 358; Dal. 45; Yelv. 153; Cro. Car. 563; Mar. 82, pl. 135; Style, 43; 2 Roll. R. 72. (b) Tutty v. Alewin (11 Mod. 221). See also Edsall v. Russell (4 M. & Gr. 1090). (c) Foulger v. Newcomb (L. Rep. 2 Ex. 327; 16 L. T. N. S. 596; 36 L. J. 169, Ex.). (d) Per Kelynge, Wyndham, and Twysden, JJ., Terry v. Hooper (f) Surman v. Shelleto (Burr. 1688). PART IV. CHAPTER VL Imputations asphalte according to his contract;"(a) or of a certificated master mariner, that " during his stay at N. he was frequently drunk, and in that state had to be carried to his boat to reach his vessel, &c."(b) So it was held slanderous to say of a gamekeeper, that he had trapped foxes; the declaration stating that it was his duty as such gamekeeper not to kill foxes, and that he was employed on the terms of his not doing so, as the defendant knew. (c) A letter published in the Times newspaper stating that a ship of which the plaintiff was owner and master, and which was advertised as about to sail to the East Indies, was not seaworthy, and that some Jews had bought her for the purpose of taking out convicts, was held to be a libel on the plaintiff in his trade and business, and not a mere disparagement of the ship.(d) "This is not,” said Coltman, J., "a case of mere disparagement of a chattel, but a libel on the plaintiff in the way of his business, and with reference to an intended voyage. It is impossible, therefore, to say that the action is not maintainable independently of malice. To say of a shipowner that he has sold his ship to carry convicts, when she was in a condition in which she must be expected to go to the bottom, is as bad as saying of a wine merchant that his wine is poisoned; or of a tea-dealer that his tea is made green by drying it on copper." And Erskine, J., added, "I think there could not be a more flagrant personal libel than such a statement made with respect to the master of a ship." In order that an action of slander shall be maintainable for words spoken of a man in his office, profession, trade, or calling, it must clearly appear that the words were spoken of him in relation to that office, profession, trade, or calling.(e) Imputations which would affect injuriously the credit of a injur ous to the trader or merchant are also actionable; and it is not necessary that actual bankruptcy should be imputed. credit of a trader or merchant. Thus it has been held actionable to use words of an inu(a) Babonman v. Farrell (13 C. B. 360). (b)_Irwin v. Brandwood (2 H. & C. 960; 9 L. T. N. S. 772; 33 L. J. 257, Ex.). See Coxhead v. Richards (2 C. B. 569; 15 L. J. 278, C. P ; and Harwood v. Green (2 C. & P. 141). (c) Foulger v. Newcomb (ubi supra). See 1 Vin. Abr. 464; 3 Salk. (d) Ingram v. Lawson (6 Bing. N. C. 212; 8 Scott, 471). (e) Sibley v. Tomlins (4 Tyrw. 90). 328; Ayre v. Craven (2 A. & El. 7; 4 Nev. & Man. 220); Doyley v. Roberts (3 Bing. N. C. 835); Lumby v. Allday (1 Tyrw. 217; 1 C. & J. 201); James v. Brook (9 Q. B. 7; 16 L. J. 17, Q. B.); Hopwood v. Thorn (8 C. B. 293; 19 L. J. C. P. 94); Morgan v. Lingen (8 L. T. N. S. 800). PART IV keeper imputing insolvency, although at the time they were spoken an innkeeper was not subject to the bankrupt laws. (a) CHAPTER ✔ .. The single question is" said Abbott, C.J., (b) "whether words imputing an inability to pay debts be injurious to a person who seeks his living by buying provisions upon credit and selling them again to his guests at a profit, he not being liable to the bankrupt laws. Now, such an imputation is calculated to prevent him from having that credit which is at least useful, if not necessary, in his business; the words, therefore, are likely to be injurious to him." So to say of a trader that he is "A sorry, pitiful fellow, and a rogue; he compounded his debts at five shillings in the pound;"() or "If he does not come and make terms with me, I will make a bankrupt of him, and ruin him;" (d) of a brewer, "I will bet 51. to 17. that Mr. J. was in a sponging house for debt within the last fortnight, and I can produce the man who locked him up; the man told me so himself;" &c.; (e) of a dyer that "He is a bankrupt knave, and is not worth three half-pence" (f); of a tailor, "I heard you were run away;" (g) of a husbandman, "He owes more money than he is worth; he is run away and is broke;" (h) of a carpenter, "He is broken and run away, and will never return again; (i) and even in cases where an expectation or opinion only was expressed, as “I believe all is not well with Daniel Vivian: there are many merchants who have lately failed, and I expect no otherwise of Daniel Vivian." (j). It was held actionable to say of an upholsterer, "You are a (a) Whittington v. Gladwin (5 B. & C. 180); see also Southam v. Allen (Sir T. Ray, 231), where the words were, Deal not with the plaintiff, for he is broke, and there is neither entertainment for man or horse." (b) 5 B. & C. 181. (c) Stanton v. Smith (Ld. Ray. 1480; Str. 762). See a case relating to a pawnbroker (Holt, 652). (d) Brown v. Smith (13 C. B. 596; 22 L. J. 151, C. P.). (e) Jones v. Littler (7 M. & W. 423). See, as to calling a stock-jobber "a lame duck," Morris v. Langdale (2 Bos. & P. 284); and, as to imputing insolvency to a banker, Robinson v. Marchant (7 Q. B. 918). (f) Squire v Johns (Cro. Jac. 585). (g) Davis v. Lewis (7 T. R. 17). (h) Dobson v. Thornistone (3 Mod. 112). (i) Chapman v. Lampshire (3 Mod. 155). In this case it was argued for the defendant that the plaintiff might be broken and yet be as good a carpenter as before. "But," said the Chief Justice, "the credit which the defendant (plaintiff ?) has in the world may be the means to support his skill, for he may not have an opportunity to show his workmanship without those materials with which he is entrusted.” (j) 3 Salk. 326; Raym. 207. See also Harrison v. Thornborough (10 Mod. 196). PART IV. CHAPTER VI. Criticisms, on works appealing to public. Publications soldier; I saw you in your red coat doing duty; your word is not to be taken "-it having been a common practice for tradesmen to protect themselves against their creditors by a counterfeit listing (a). In one case, where it was said of a merchant with respect to an event which had occurred eight years previously, " He came a broken merchant from Hamburgh," the Court (b) held that an action would lie, the charge being of having been "once broken, Et qui semel malus semper presumitur esse malus eodem genere, or at least may have an inclination thereto; and it being alleged to be spoken falso et malitiosè, and to scandalise him in his profession, it is a great cause of discrediting and impairing him in his trade, whereas their credit is the principal means of their gain."(c) And according to Kelly, C.B., (d) it is libellous to impute untruly to any person pecuniary embarrassment and inability to purchase a certain property without the aid of a loan from a third party; even although it be at the same time stated that the loan was afterwards honourably repaid. Defamatory attacks on persons in the way of their trade, profession, or calling, must be distinguished from hostile criticisms fairly and temperately expressed on such of their works and performances as appeal to the public; for such criticisms, however severely they may condemn or effectually turn into ridicule the works of authors, painters, architects, actors, &c., or even the advertisements or handbills of a tradesman, may be justifiable, though not in all respects accurate; whereas publications which have for their object the private injury of the person attacked can only be justified by their substantial truth. This subject will be more fully dealt with by and by.(e) Publications merely disparaging the commodities of a disparaging rival tradesman must also be distinguished from libels upon rival tradesmen. him in the way of his trade. commodities of Where a person published a circular and report comparing his own goods with those of another tradesman, and describing his own as superior, but not making any false misrepresentations as to the quality and character of the latter, it was held, on demurrer to a declaration, that an action of libel could not be maintained by the tradesman whose goods were disparaged, notwithstanding an (a) Arne v. Johnson (10 Mod. 111). (b) Croke, Jones, and Berkley, JÍ., dissentiente Richardson, C.J. (d) Cox v Lee (L. Rep. 4, Ex. 284; 38 L. J. 219, Ex.; 21 L. T. N. S. 178). (e) See the chapter on "Comments on Matters of Public Interest," post. PART IV.; allegation in the declaration of special damage, though they might be superior to the goods of the other. (a) CHAPTER VI. "I am far from saying," said Cockburn, C.J., "that if a man falsely and maliciously makes a statement disparaging an article which another manufactures or vends, although in so doing he casts no imputation on his personal or professional character, and thereby causes an injury, and special damage is averred, an action might not be maintained." "My own impression is," said Blackburn, J., " that where there is a written depreciation of an article, unless it is a slander actionable in itself, no allegation of special damage will render it actionable, except in the case of slander of title. But there may, as my lord says, be cases where there is a scienter on the part of the defendant who has made statements doing mischief and calculated to do it, in which an action would lie." So where the defendant issued a notice cautioning the public that the "self-acting tallow syphons or lubricators," sold by the plaintiff were not good for their purpose, and that those who bought them would find that the tallow was wasted instead of being effectually employed as professed; the publication was held not to be a libel on the plaintiff in the way of his trade. (b) "A tradesman," said Lord Denman, C.J. "offering goods for sale, exposes himself to observations of this kind; and it is not by assuming them to be false, scandalous, malicious, and defamatory,' that the plaintiff can found a charge of libel upon them. To decide so would open a very wide door to litigation, and might expose every man who said his goods were better than another's to the risk of an action." Patteson, J., said that if the caution had been against the plaintiff as a tradesman in the habit of selling goods which he knew to be bad, it would be a libel upon him personally. scorn or The third class of libels on individuals embraces those Publications which, by holding up a man to scorn and ridicule, and still holding up to more to any stronger feeling of contempt or execration, ridicule. impair him in the enjoyment of general society, and injure those imperfect rights of friendly intercourse and mutual benevolence which man has with respect to man. (c) Everything, also, which, by holding him up to that scorn and ridicule that might reasonably (that is, according to our natural passions) be considered as provoking him to a breach of the peace, is a libel. (d) (a) Young v. Macrae (3 B. & S. 264; 32 L. J. 6, Q. B). (d) Ib. 213. |